Kerala High Court
Liji Suresh Kumar vs Anil Kumar on 27 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
SATURDAY,THE 27TH DAY OF NOVEMBER 2021/6TH AGRAHAYANA, 1943
MACA NO. 1588 OF 2015
AGAINST THE AWARD DATED 09.03.2015 IN O.P.(MV) NO.806 OF
2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT:
LIJI SURESH BABU,
W/O.SURESH BABU, VELIYATHUPARAMBIL HOUSE,
THAZHEKADU DESOM & VILLAGE, KALLETTUMKARA P O,
MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY ADV SRI.A.N.SANTHOSH
RESPONDENTS:
1 ANIL KUMAR
S/O.NARAYANAN NAIR, KOORIKKATTIL HOUSE,
IRANIKULAM, MALA P O - 680732
2 SHRIRAM GENERAL INSURANCE COMPANY LTD
10003-E-8,RIICO, INDUSTRIAL AREA, SITAPURA,
JAIPUR, RAJASTHAN-504216.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR FINAL HEARING ON 20.11.2021, THE COURT ON 27.11.2021
DELIVERED THE FOLLOWING:
2
M.A.C.A.No.1588 of 2015
P.G. AJITHKUMAR, J.
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M.A.C.A.No. 1588 of 2015
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Dated this the 27th day of November, 2021
JUDGMENT
Appeal under Section 173 of the Motor Vehicles Act, 1988. The appellant was the petitioner in O.P.(MV) No.806 of 2010 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. The respondents in the appeal were the respondents before the Tribunal.
2. The appellant had filed the claim petition under Section 166 of the Act, claiming compensation on account of the injuries that she sustained in an accident on 17.06.2010. It was her case that, on the aforesaid day at 7.15 p.m., while she was riding a motorcycle bearing Reg.No.KL-08-M-1245 along Thommana-Thumboor Road and when he reached near Kacheripady, a bus bearing Reg.No.KL-08-Y-6879 hit against the motorcycle. As a result, the appellant sustained injuries and was taken to Sacred Heart Hospital, Pullur. She sustained a fracture of the shaft of right humerus. She had to undergo treatment as an inpatient from 17.06.2010 to 25.06.2010. 3 M.A.C.A.No.1588 of 2015 The incident had occurred as a result of rash and negligent driving of the bus driver.
3. The appellant was a tailor by profession and she was earning Rs.6,000/- per month.
4. The 2nd respondent had filed a written statement in the claim petition refuting the allegations. The 2 nd respondent also disputed the age, income and occupation of the appellant in the claim petition. However, the 2 nd respondent admitted that the vehicle had a valid insurance coverage.
5. O.P.(MV) No.806 of 2010 was tried along with O.P. (MV) No.805 of 2010, which was filed by the pillion rider of the vehicle driven by the appellant. Exts.A1 to A11 were marked in evidence and PW1, the Doctor, who examined and issued disability certificate in respect of the appellant, was examined. The respondents produced Ext.B1, the policy of insurance of the bus.
6. The Tribunal, after analysing the pleadings and materials on record, by its award dated 09.03.2015, allowed the claim petition in part, by permitting the appellant to recover from the 2nd respondent an amount of Rs.1,07,860/-, 4 M.A.C.A.No.1588 of 2015 with interest and costs.
7. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal.
8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2 nd respondent.
9. The sole question that arises for consideration in this appeal is whether the quantum of compensation awarded by the Tribunal is just and reasonable.
10. On appreciation of the pleadings and materials on record, the Tribunal has awarded Rs.15,000/- as compensation for pain and suffering. The injury sustained was a fracture of the shaft of right humerus. Naturally, the appellant should have undergone treatment for a long period on account of the nature of injuries. Considering those aspects, I deem it appropriate that the compensation for pain and suffering can be refixed as Rs.20,000/-.
11. The Tribunal has fixed Rs.3,000/- as the monthly income of the appellant. The learned counsel appearing for the appellant contended that in the light of the principles laid 5 M.A.C.A.No.1588 of 2015 down in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236] and as explained the principle in Gopinathan A. and others v. Afzal Basha and another [2020 3 KHC 666], the Tribunal ought to have fixed the notional monthly income as 7,500/-. The learned counsel appearing for the respondent, on the other hand, would contend that when the appellant asserted that the income she was getting during the period was Rs.6,000/- the guideline laid down in Ramachandrappa's case cannot be applied.
12. Going by the principle in Ramachandrappa's case the notional income of the appellant needs to be fixed at Rs.7,500/-, having the accident occurred in 2010. In Gopinathan A. (supra) this Court, following the ratio in Ramachandrappa, held that even in a case where the notional monthly income claimed in the claim petition is on the lower side, the principle in Ramachandrappa's case and Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735] has to be followed for fixing the notional income. Considering the fact that the 6 M.A.C.A.No.1588 of 2015 accident occurred in the year 2010, I hold that the appellant's notional income can be taken as Rs.7,500/- per month. Therefore, 'loss of earnings' awarded by the Tribunal for three months as Rs.10,500/-, can be enhanced to Rs.22,500/- (Rs.7500 x 3). The enhancement is Rs.12,000/-.
13. In the place of the fixation by the Tribunal of an amount of Rs.15,000/- as compensation for pain and suffering, I re-fix the compensation for 'pain and sufferings' at Rs.20,000/-, i.e., an enhancement of Rs.5,000/-.
14. The Tribunal has taken the multiplier as '16'. It is incorrect going by the decision in National Insurance Co. Ltd vs Pranay Sethi [(2017) 16 SCC 680]. The correct multiplier is '15', since the appellant was aged 36 years at the time of the accident. The learned counsel for the appellant submitted that the Tribunal assessed disability as 5%, deviating from Ext.A5. He would contend that the doctor, who issued Ext.A5, certifying that the disability was 10%, the Tribunal should not have deviated from it. The learned Tribunal after considering all attending circumstances took the view that 5% disability occassioned to the appellant. I find no 7 M.A.C.A.No.1588 of 2015 reason to upset that finding. Hence, the compensation for permanent disability is refixed as Rs.7,500 x 12 x 15 x 5% = 67,500. Hence the compensation under the head 'permanent disability' is Rs.67,500 - 33,600 = 33,900/-.
15. With respect to other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation.
In the result, the appeal is allowed in part, by enhancing the compensation by an amount of Rs.50,900/- with interest at the rate of 7.5% per annum on the enhanced amount, from the date of petition till the date of deposit, and a costs of Rs.3,000/-. The 2nd respondent is ordered to make payment of the enhanced compensation with interest and costs through the Tribunal within sixty days from the date of receipt of a certified copy of the judgment. The Tribunal shall see that the amount of enhanced compensation is duly disbursed to the appellant in accordance with law.
Sd/-
P.G. AJITHKUMAR, JUDGE dkr